WIENER, J., Concurring. I add the following comments because there are some troublesome aspects to this case which I believe warrant further discussion. I have a general concern that courts using circular reasoning may be giving only lip service to People v. Ireland (1969) 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323]. While giving token acknowledgment that Ireland precludes application of the felony-murder rule where the underlying felony is assault with a deadly weapon, courts appear nonetheless to find the defendant guilty of second degree murder solely because the killing occurred in the commission of an assault with a deadly weapon. My specific concern here is this problem may have been compounded by the possibility the trial court failed to consider Summers’ guilt of the necessarily included offense of involuntary manslaughter. I have resolved these concerns by concluding the trial court weighed the facts against the range of potential verdicts and substantial evidence supports the judgment.
The People’s theory at trial was that Summers had committed a premeditated and deliberate first degree murder. The prosecutor focused on Summers’ activity before the killing, the nature of the killing and the motive of retaliation in response to the victim’s stealing of Summers’ drugs. Summers [186]defended by urging a finding of justifiable homicide, a killing in self-defense, or at most manslaughter.
In this appeal, Summers has a different slant. He now labels the manslaughter as involuntary and primarily focuses on the court’s alleged failure to consider that finding in its deliberations. Although involuntary manslaughter was clearly a legal choice on the facts presented, it was not seriously advocated at trial and only briefly mentioned in Summers’ new trial motion. It is the colloquy at closing argument in the court trial and at the hearing on the new trial motion which Summers contends reflects the court’s misunderstanding of the scope of homicide. For example, he refers to the following:
“The Court: [The prosecutor has told me] that even if the court believes everything that the defendant said, it would be second degree murder. It would certainly not be manslaughter, and I think that it’s evident that he was the aggressor, the one who pointed the gun ....
“What would anybody do with a gun pointing at him . . . ? [Defense counsel] pointed out on page 19 of [his points and authorities, in discussing implied malice] that ‘the pointing of a loaded firearm in and of itself is not necessarily an inherently dangerous act.’ I disagree with that.
“. . . Assuming that this man came in with a gun pointing upwards to either scare him or to find out where his boy [was] . . . and [then pointed] the gun at him . . . let’s assume that that was his intent. And then the victim seizes the gun as any reasonable, prudent man would. There is a struggle, and the gun fires twice, once to the side and the next one into the heart of the victim. What do we have there?
“[The Prosecutor]: ... At the very least you would have second degree murder.
“The Court: ... I don’t think I’m going to grant a new trial. There is nothing that would really justify me granting a trial. Why don’t you address the issue of first degree.
“. . .Iam really not interested in manslaughter. I am sure it is not manslaughter. We’re talking only about first and second.”
[187]It would be manifestly unfair to draw the inference from these selective statements that the trial judge was unaware of the applicable law. The comments were made in a context of vigorous debate during which each counsel stressed specific facts having legal consequences favorable to his position. The court’s comments were neither findings nor statements of legal principles. The judicial musings were nothing more than self-directed rhetorical hypotheticals used to isolate and analyze the relevant legal principles. It would be a disservice to the trial bench and to this conscientious judge to necessarily label as findings those statements exchanged in a quest for the correct legal propositions to apply. Moreover, the court’s difficulty in selecting the correct legal pigeonhole for Summers’ conduct is understandable. Malice is an amorphous legal concept, easier to recognize than to articulate.
Penal Code section 188 furnishes the rather opaque definition that malice “. . .is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” An abandoned and malignant heart is shown when “. . . the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.” (People v. Thomas (1953) 41 Cal.2d 470, 480 [261 P.2d 1], Traynor, J., conc.)
Central to the arguments of both the prosecutor and defense counsel was whether malice could be implied from the evidence. The prosecutor cited People v. Butterfield. (1940) 40 Cal.App.2d 725 [105 Cal.Rptr. 628] to explain how malice could be found: “When an unlawful assault is made with a deadly weapon upon the person of another, resulting in death, and the assault is not provoked or perpetrated in necessary self-defense, or in the heat of passion, malice may be presumed. Under such circumstances, the killing may constitute murder of the second degree when it is not perpetrated by means of poison, lying in wait, torture or any other kind of wilful, deliberate or premeditated killing.” (Id., at p. 729.) These statements of the law may have formed the basis for later statements made by the court and prosecutor (see pp. 182-183, ante) in which they discussed the pointed gun.
I disagree with those statements. I believe a finding of implied malice may not be based on the single act of pointing a gun, isolating that fact from all the other facts and circumstances surrounding the use of the weápon and the later killing. If gun use were the sole criterion for second degree murder the merger doctrine developed from People v. Ireland, supra, 70 Cal.2d 522 would have no practical effect.
[188]Ireland held it was error to give a second degree felony-murder instruction when it was based upon the felony of assault with a deadly weapon. Since an assault is an integral part of homicide, it is an offense included in fact within homicide. (People v. Ireland, supra, 70 Cal.2d at p. 539.) The court explained to apply the felony-murder rule to an assault would extend the rule beyond the rational function it was designed to serve, i.e., to deter felons from killing negligently or accidentally. (Ibid.) The facts of Ireland made the “bootstrapping” finding of malice particularly troublesome because it would have substantially eviscerated a diminished capacity defense. (Id., at p. 539, fn. 13.)
Ireland was limited to its facts (70 Cal.2d at p. 540) and for a short time it appeared that the holding only applied to cases where a diminished capacity defense was raised. (See People v. Fain (1969) 70 Cal.2d 588, 598 [75 Cal.Rptr. 633, 451 P.2d 65] (felony second degree murder rule instruction based on assault with a deadly weapon was not prejudicial error where no diminished capacity defense was raised).) However, in People v. Wilson (1969) 1 Cal.3d 431 [82 Cal.Rptr. 494, 462 P.2d 22], the principle expressed in Ireland was expanded. There, a burglary based upon the felony of assault with a deadly weapon was also found to be an offense included within a charge of murder. (Id., at p. 441.) The court expressly adopted the so-called merger doctrine which was accepted in other states, such as New York. (Id., at p. 442.) The holding was not based on prejudice to the defendant’s defense, but instead focused on the lack of a rational basis for the felony-murder rule when the underlying felony is part of a homicide.. (See Comment, Merger and the California Felony-Murder Rule (1972) 20 UCLA L.Rev. 250, 265-266, fn. 74.)
The result from Wilson is only felonies independent of a homicide can support a felony-murder instruction. Felonies that are an integral part of a homicide are merged into the homicide and the trier of fact must independently find the required elements for the murder, i.e., malice.
In People v. Poddar (1974) 10 Cal.3d 750 [111 Cal.Rptr. 910, 518 P.2d 342], the defendant was charged with murder based on an alleged attack on his victim with a deadly weapon. Defendant attacked the reading of the implied malice instruction (CALJIC No. 8.31) because it did not preclude the jury from implying malice from a dangerous act which was itself an integral part of the homicide. (10 Cal.3d at p. 755.) In other words, if an assault with a deadly weapon cannot be used to impute malice through the felony-murder rule, it cannot be used to imply malice either.
The court rejected this assertion because defendant’s argument was predicated on the assumption that the second degree murder-implied malice in[189]struction is the functional equivalent of the second degree felony-murder instruction. (People v. Poddar, supra, 10 Cal.3d at p. 756.) This is not the case. There is one crucial and controlling distinction between the two situations governed by the instructions. Under the felony-murder instruction, if the intentional commission of the underlying felony is shown, no further findings need be made in order to convict of murder. Under the second degree murder-implied malice instruction, however, “. . . the mere finding that the underlying act had been committed is not enough; it must be further found that the act was done for a ‘base, antisocial purpose with wanton disregard for life’ [citation]—that is, with malice aforethought . . . .” (Ibid.)
The important rule emanating from these cases is that something more than the intent to commit assault with a deadly weapon must be shown in order to find malice. Since “[a]n assault with a deadly weapon can be proved without proof of malice” malice is found not from the mere fact of assault, but “from the circumstances surrounding the commission of an assault that results in murder.” (People v. Goodman (1970) 8 Cal.App.3d 705, 708 [87 Cal.Rptr. 665], disapproved on other grounds in People v. Beagle (1972) 6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1].) Thus, it is essential that a trier of fact appreciate that “something more” be established than merely an assault with a deadly weapon in order to find a defendant guilty of second degree murder. I would hope that after Ireland courts would eschew the pre-Ireland!Butterfield reasoning (but see, e.g., People v. Lines (1975) 13 Cal.3d 500, 506 [119 Cal.Rptr. 225, 531 P.2d 793]; Walker v. Superior Court (1980) 107 Cal.App.3d 884, 889 [166 Cal.Rptr. 209]) restricting their analysis to the reasoning of the merger line of cases.
As reflected in this court’s opinion, there is ample evidence to establish the “something more” from Summers’ conduct. The trial court rejected Summers’ statements he was anxious over the well-being of his son and impliedly found he knew the victim would hardly acquiesce to the violent nature of Summers’ confrontation. The earlier events between the parties made death a predictable consequence of Summers’ act. Thus Summers is guilty of second degree murder not because death resulted in the commission of an assault with a deadly weapon, but because substantial evidence drawn from all the circumstances supports a finding of unlawful killing done with malice. Accordingly, I concur in the judgment.